A general challenge of publishers (which definitely applies to Indy publishers) originates from the changing boundaries of the laws of publicity, libel, and privacy. Contracts typically contain indemnification clauses protecting the publisher’s interests in this regard.
If you publish statements that are false and defamatory, or even private facts that are embarrassing to someone, you can be sued. In this litigious and highly proprietary time, more and more references to individuals (deceased or living) are bringing claims of breach of privacy, defamation, or violation of publicity rights.
These issues primarily face nonfiction publishers, but that doesn’t prevent those publishing fiction to be affected. Let’s take a look at each of these areas.
Please use this article as an educational resource only, it is not meant to provide legal advice.
Defamation
Generally “defamation” is a false statement of fact
about a living individual (though in certain jurisdictions it may apply to deceased individuals and, periodically, to corporate entities) that holds the person up to scorn or ridicule. Note that the law allows more leeway when discussing public figures.
Privacy Rights
An individuals’ privacy rights is a related issue. Typically, this area is more of a challenge to magazine and newspaper publishers because of the nature of the fast paced reporting which may cause the re lease of facts that should not be made public, including financial, medical, or other highly personal information.
The reality is that all publishers of nonfiction must be wary of disclosing personal information of a sensitive or embarrassing nature. (And this is in the United States, where the rules are relatively liberal; beware of disclosing personal information about foreigners or about Americans in works published outside the United States.) Where any such information is about to be published, consult with your lawyers to be sure you aren’t at risk of violating a criminal or civil statute here or abroad.
Publicity Rights
Publicity is closely related to the right of privacy. (This is technically a subset of the “right of privacy” which, in legal terms, incorporates four related rights: publicity, intrusion, privacy, and false light.) Generally, the right of publicity prevents the commercial exploitation of the value of an individual’s likeness and name. Not only are celebrities protected by this right, but it protects others whose appearances and names have real commercial value. It also prevents the use of anyone’s likeness or name in trade or advertising without their permission.
Are you with a traditional publisher or are you Indy? If you’re with a traditional publisher, check your contract. If you are an Indy publisher, what steps do you take to protect yourself?
Next month we’ll take a look at negligent publication.
(C) 2018, 2019 Karen Van Den Heuvel Fischer